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This page lists Boone County Bar Association programs since July 1, 2001 for which CLE credit was given and, when available, includes materials or links to materials from those programs.

CLE credit programs since July 1, 2001 
Ex Parte Contacts with Organizational Employees 
Criminal, DWI and Traffic Law Update 
Fee Agreements: Suggestions to Avoid Disagreements 
Appellate Practice 
Understanding the Advocate's Role in Mediation 
White Collar Crime 
Legal Ethics Counsel 
Copyright and Trademark
File-Retention Rule
Better Practice Management through Self-Management and MoLAP Program
What Every Lawyer Should Know about Bankruptcy Law Changes
Introduction to Fastcase
Another World: Civil Practice Before Associate Circuit Judges and the Differences You Should Know About
Electronic and Digital Evidence

CLE credit programs since July 1, 2001

The following Boone County Bar Association programs have been approved for Missouri Bar CLE credit since July 1, 2001:

"State of the Judiciary" - presented by 13th Circuit Presiding Judge Frank Conley - September 19, 2001 - 1 hour
"The New Recording Statutes" - presented by Boone County Recorder Bettie Johnson - October 10, 2001 - 1 hour
"Appellate Practice and Procedure" - presented by judges of the Missouri Court of Appeals, Western District - November 14, 2001 - 1 hour
"Ex Parte Contacts with Organizational Employees - presented by Jeff Parshall and Mark Pfeiffer - January 9, 2002 - 1 hour (including ethics credit)
"Criminal, DWI and Traffic Law Update" - presented by Rusty Antel - February 13, 2002 - l hour
"Case Management Software" - presented by Tim Mellitz - March 13, 2002 - 1 hour
"Bankruptcy Practice" - presented by John Reed - May 8, 2002 - 1 hour
"Court Automation Update" - presented by Bob Perry, Cheryl Whitmarsh, Kathy Lloyd and Melody Garnett - June 12, 2002 - 1 hour
"Fee Agreements: Suggestions to Avoid Disagreements" - presented by Chief Disciplinary Counsel Maridee Edwards and CDC Staff Counsel Mark Flanegin - July 10, 2002 - 1 hour (including ethics credit)
"Appellate Practice and Procedure" - presented by judges of the Missouri Court of Appeals, Western District - November 13, 2002 - 1.2 hours
"Courtroom Technology" - presented by Debbie Weaver, Courtroom Technologies Consultants, and Jimmy LoMonaco, Conference Technologies - February 12, 2003 - 1 hour
"Understanding the Advocate's Role in Mediation" - presented by Sarah J. Read - March 12, 2003 - 1 hour
"White Collar Crime" - presented by Stephen B. Smith, CPA - May 14, 2003 - 1 hour
"Legal Ethics Counsel" - presented by Sara Rittman, Missouri Legal Ethics Counsel - July 9, 2003 - 1 hour (including 1 hour of ethics credit)
"Copyright and Trademark" - presented by David Van Dyke, intellectual property attorney at Shelter Insurance Companies - November 12, 2003 - 1 hour
"Getting Behind the Rhetoric of the Malpractice Debate" - presented by MU Law Prof. Phil Peters - January 14, 2004 - 1 hour
"Controlling an Expert or Other Obstreperous Witness on Cross-Examination" - presented by MU Assoc. Law Prof. Steve Easton - May 12, 2004 - 1 hour
"Appellate Practice" - presented by Missouri Supreme Court Judge Duane Benton - June 9, 2004 - 1 hour
"Collaborative Family Law" - presented by practitioners Peter Schloss and Hugh O'Donnell and MU Law Prof. John Landes - July 14, 2004 - 1 hour
"What All Lawyers Should Know about Immigration Law" - presented by Steve Blower - August 11, 2004 - 1 hour
"Current Appellate Practices and Procedures" - presented by Judges Lisa White Hardwick, Robert Ulrich and Thomas Newton, Missouri Court of Appeals, Western District - November 17, 2004 - 1 hour
"The New File-Retention Rule: What You Can Do to Reduce Costs, Free Up Space, and Care for Your Loved Ones After You Are Gone" - presented by Sarah J. Read and Sara Rittman - January 12, 2005 - 1 hour (including 1 hour of ethics credit)
"Family Law Symposium" - presented by Leslie Schneider, Gary Stamper and Doug Pugh - May 6, 2005 - 2 hours
"Drug Court and Mental Health Court" - presented by Judge Christine Carpenter - May 11, 2005 - 1 hour (including 1 hour of ethics credit)
"Better Practice Management through Self-Management" - presented by Jim Brady, Director, Missouri Lawyers Assistance Program - June 8, 2005 - 1 hour (including 1 hour of ethics credit)
"What Every Lawyer Should Know about Bankruptcy Law Changes" - presented by Janice Harder and Harry Boul - July 13, 2005 - 1 hour
"Legislative Update" - presented by Jeff Harris - August 10, 2005 - 1 hour
"Current Appellate Practices and Procedures" - presented by Judges Eddie Smith, Thomas Newton and Lisa White Hardwick, Missouri Court of Appeals, Western District - November 9, 2005 - 1 hour
"Factual Discovery and Public Records - presented by Wendall Coonse, LexisNexis representative - January 11, 2006 - 1 hour
"Ethical Considerations and Domestic Violence" - presented by Boone County Prosecutor Kevin Crane and assistant prosecutors Nicole Volker and Merilee Crockett - February 8, 2006 - 1 hour including 0.6 hour ethics credit
"Thinking Inside the Box -- Lawyers as Jurors" - presented by panel of lawyers who served on jury panels - July 12, 2006 - 1 hour
"Would You Like Fries with That?...and Other Sentences You Want to Keep Out of Your Professional Vocabulary" - presented by MU Law Prof. Steve Easton - November 8, 2006 - 1 hour including 1 hour ethics credit
"Potential Pitfalls in Family Law Cases" - presented by a panel of members of the BCBA Family Law Committee - January 10, 2007 - 1 hour
"Nuts and Bolts of Alternative Dispute Resolution" - presented by Jim Levin, Assistant Director of the MU Law School Center for Dispute Resolution - February 14, 2007 - 1 hour
Panel Discussion on Jury Selection - presented by Judge Gary Oxenhandler, Wally Bley and John Roark - March 14, 2007 - 1 hour
"Changes to Missouri Supreme Court Rule 4" - presented by Missouri Legal Ethics Counsel Sara Rittman - May 9, 2007 - 1 hour including 1 hour of ethics credit.
"Introduction to Fastcase" - presented by Steve Scott - June 13, 2007 - 1 hour
"Perspective from the Bench -- New Judges" - presented by Associate Circuit Judges Deborah Daniels and Leslie Schneider - July 11, 2007 - 1 hour
"Legislative Developments in 2007 - presented by Catherine Barrie, Missouri Bar lobbyist, and Skip Walther, member of the Missouri Bar Board of Governors - August 8, 2007 - 1.2 hours
"Another World: Civil Practice Before Associate Circuit Judges and the Differences You Should Know About" - presented by Steve Scott - November 14, 2007 - 1.2 hours
"An Early Look at the Roberts Court" - presented by MU Law School Prof. Emeritus Bill Fisch - January 9, 2008 - 1.2 hours
"Boomer Planning: Win, Lose or DRA?" - presented by Reginald H. Turnbull - February 13, 2008 - 1.2 hours
"Of Course It's a Dangerous Condition -- Somebody Was Hurt" - presented by Zach Cartwright, senior litigation counsel, Missouri Highways and Transportation Commission - April 9, 2008 - 1.2 hours
"Electronic and Digital Evidence" - presented by Craig J. Chval, The Chval Law Group, P.C. - May 14, 2008 - 1.2 hours
"The Newest, Latest and Greatest Ethical Rules You Should Know About" - presented by Chris Stiegemeyer, risk manager for The Bar Plan Mutual Insurance Company - June 11, 2008 - 1.2 hours including 1.2 hours ethics credit

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Ex Parte Contacts with Organizational Employees

This CLE program was presented by Jeff Parshall and Mark Pfeiffer on January 9, 2002. The primary reference material for the program was an article titled "Ex Parte Contacts with Organizational Employees in Missouri," which appeared in the March-April 1998 issue of The Journal of the Missouri Bar. See http://www.mobar.org/journal/1998/marapr/index.htm.

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Criminal, DWI and Traffic Law Update

This CLE program was presented by Rusty Antel on February 13, 2002. Rusty's notes for the program follow:

Changes in Missouri law related to alcohol related traffic offenses:

Section 302.302(9) and (10) provides for the assessment of points for convictions for driving with a blood alcohol content of .08% or more by weight – the point assessment remains the same with eight (8) points on a first conviction and twelve (12) points on a second or subsequent conviction.

Sections 302.302 (14), 302.540.1 and 577.023.7 modify the requirement for completion of SATOP as a requirement for license reinstatement:

"…a program determined to be comparable by the Department…" is sufficient.
After a hearing, the court may modify or waive the assignment recommendation that the court determines is unwarranted based upon a review of the needs assessment, driving record, circumstances of offense and the likelihood of the person committing a like offense in the future, but the court cannot waive the assignment to an educational or rehabilitation program for a prior or persistent offender as defined in Section 577.023 RSMo or a person whose blood alcohol content at the time of the offense was .15% or more.

Section 302.505 and following sections change the blood alcohol content for the administrative suspension and revocation process to .08%.

Section 302.540.4 authorizes the Division of Drug and Alcohol Abuse within the Department of Mental Health to create a demonstration program to provide education or rehabilitation services to person determined by DDAA to be "serious or repeat offenders", which is defined as a prior or persistent offender under Section 577.023 RSMo or a person whose blood alcohol content at the time of the offense was .15% or more.

NOTE: Changes in provisions above under Section 302.302 RSMo are effective September 29, 2001.

Section 304.027 creates the Spinal Cord Injury Fund. Any person convicted of an intoxication related traffic offense as defined by Section 577.023 RSMo shall pay a $25 judgment to this fund. (Effective August 28, 2001).

Section 577.012 changes the crime of driving with excessive blood alcohol content to operating a motor vehicle with a blood alcohol content of .08% or more. A first offense conviction is changed from a class C to a class B misdemeanor. (Effective September 29, 2001).

Section 577.021 pertaining to portable or preliminary breath tests is changed to allow these tests by any state, county or municipal law enforcement officer who has the power of arrest for violations of Sections 577.010 or 577.012 RSMo and who is certified pursuant to Chapter 590 RSMo. Currently, the law authorizes such tests by the state highway patrol.

The test is admissible to show probable cause for the arrest and is admissible as exculpatory evidence. It is not admissible as evidence of blood alcohol content.
The implied consent law does not apply to portable or preliminary breath tests (refusal to submit to such a test will not trigger the license revocation process for refusing to submit to a chemical test).
There is no requirement that the test result be recorded. Currently, the portable breath test is given by the highway patrol, the University of Missouri-Columbia Police Department and the Columbia Police Department. Current MSHP and MUPD policy does not require that the test result be recorded.
Supreme Court Rule 25.03 re mandatory discovery requires that exculpatory evidence including evidence that mitigates the degree of the offense or the punishment shall be provided upon written request, but if the test result is not provided, how can defense counsel determine if the evidence is exculpatory. This is also important if the prosecutor has a policy to reduce some DWI charges to DWBAC if the breath test is below a certain threshold.
Section 577.020.6 RSMo requires that full information about any chemical test be provided to the defendant.
The PBT is not authorized to be given for persons under 21 years of age stopped for a traffic violation and suspected of driving with .02% blood alcohol content or greater, as Section 577.021 RSMo specifically addresses only person suspected of violating Sections 577.010 or 577.012 RSMo.
Can a PBT be given to a person arrested for violation a municipal or county ordinance, which prohibits driving while intoxicated or driving with excessive blood alcohol content?

Section 577.021 changes are effective August 28, 2001.

Section 577.023.4 RSMo changes the mandatory minimum punishments for prior and persistent offenders.

Prior offenders must serve a minimum of five (5) days imprisonment (currently 48 consecutive hours) as a condition of probation, unless they perform thirty (30) days of community service work.
Persistent offenders must serve a minimum of ten (10) days imprisonment (currently no shock detention requirement) or sixty (60) days of community service work.

Note that "days" is not defined. This provision is effective September 29,2001.

Section 577.037.1 RSMo changes the prima facie level of intoxication from .10% to .08%. This is effective September 29, 2001.

Section 577.037.5 retains the dismissal provision for persons charged with driving while intoxicated in violation of state law or a county or municipal ordinance. The statute states that the charge shall be dismissed if the evidentiary breath, blood, saliva or urine test is less than .08% unless the court determines that the dismissal is unwarranted because of:

the test is unreliable due to a lapse of time between the driving and the evidentiary test, or
there is evidence that the person is under the influence of drugs or a controlled substances with or without alcohol, or
there is substantial evidence of intoxication from physical observations of the defendant or admissions of the defendant.

While the statute does not specifically provide for a separate hearing, as a practical matter this will occur if requested by the defendant and probably must occur if a jury trial is requested. While this may not succeed, it will give the defendant a good chance to hear the major components of the government’s evidence prior to trial.

Section 577.600 RSMo changes the provisions pertaining to ignition interlock devices. The requirement is discretionary with the court on a first intoxication related traffic offense and mandatory on a second or subsequent intoxication related traffic offense. The provision that makes the ignition interlock device applicable only to persons placed on probation has been removed. The new law requires that the court impose the ignition interlock device requirement for a minimum of one (1) month from the date of reinstatement of the person’s drivers license, even though the court would not effectively be able to enforce this if the person is not on probation except as a new criminal offense which remains a class A misdemeanor.

If a court grants a limited driving privilege to a person convicted of a second or subsequent intoxication related traffic offense, the court shall require the use of an ignition interlock device on all vehicles operated by the person as a required condition of the limited driving privilege. However, this provision is not specifically applicable to limited driving privileges granted by DOR.

The undue hardship provisions in Section 577.602.1 RSMo are eliminated. This provision allowed the court to waive the installation of an ignition interlock device if it would be a financial hardship to the offender or if installation could not be done within 50 miles of the county seat of the offender’s county of residence.

2001 Statutory Changes - Criminal and Traffic Law:

Section 302.286 RSMo: A person who is found guilty of or pleads guilty to stealing motor fuel while operating a motor vehicle shall have his driver's license suspended by the court, beginning on the date of the court's order of conviction.

Ist offense - 60 day suspension/hardship after 30 days
2nd offense - 90 day suspension/hardship after 60 days
3rd offense - 180 day suspension - hardship after 90 days

There is a $25.00 reinstatement fee. No SR-22 insurance filing is required.

Section 304.580 RSMo: On a conviction or plea of guilty to speeding in violation of Section 304.009 RSMo or Section 304.010 RSMo, or passing in a "work zone" or "construction zone", the court shall assess a $250.00 fine in addition to any other authorized fine if a worker is actually present in the work or construction zone. A sign is required which must state "$250.00 fine for speeding or passing in this work zone."

Section 374.757 RSMo requires bail bond agents who intend to apprehend any person in this state to notify local law enforcement before attempting the apprehension. The bail bond agent is required to present a certified copy of the bond. This also provides to s "surety recovery agent" when entering a residence to apprehend a wanted person. A first offense is a class A misdemeanor and a second or subsequent offense is a class D felony.

Section 547.035 RSMo authorizes the filing of a post-conviction motion for DNA testing.

Section 610.105 RSMo changes the closed record provisions. Prior to the amendment of this section, the following dispositions were closed to the public:

Suspended imposition of sentence after completion of probation.
Dismissal.
Acquittal.
Nolle prosequi.

Under the new provision, the records are closed to the public, "...except that the court's judgment or order or the final action taken by the prosecuting attorney in such matters may be accessed."

Changes in Chapter 195 RSMo:

Gamma hydroxybutyric acid ("GHB") is added to the list of Schedule I controlled substances.
Ketamine is added to the list of Schedule III controlled substances.
The penalty for trafficking in ecstasy (3, 4 methylenedioxmethamphetamine) is increased as follows:
Distribution of 30 to less than 90 grams is a class A felony.
Distribution of 90 grams or more is a class A felony without probation or parole.
Possession of 30 to less than 90 grams is a class B felony.
Possession of 90 to less than 450 grams is a class A felony.
Possession of 450 grams or more is a class A felony without probation or parole.
Stealing or attempting to steal anhydrous ammonia or liquid nitrogen is a class C felony.
Theft of anhydrous ammonia in any amount by taking a tank truck or tank trailer is a class A felony.
Possession of anhydrous ammonia in an unapproved container is a class D felony.

Case Law Update:

Dean v. Director of Revenue, (Mo. App. WD 2001) holds that Section 577.054 RSMo authorizes expungement only for records in the criminal case including the arrest, plea and conviction. The records of the administrative proceedings under Chapter 302 RSMo are not subject to expungement. The following records can be expunged:

FBI and NCIC criminal history records.
MSHP criminal history records.
Criminal history records maintained by the PA.
Criminal records maintained by the court clerk and on casenet.
MSHP traffic arrest system records.
DOR conviction records and point suspension records.

The administrative suspension records cannot be expunged under Section 577.054 RSMo.

State v. Cullen, (Mo. App. ED 2001) requires that proof of prior and persistent offender allegations must occur prior to submission of the case to the jury.

State v. Stottlemeyer, (Mo. App. WD 2001) holds that operating procedures pertaining to portable or preliminary breath test instruments do not need to be approved by the Department of Health.

State v. Duncan, (Mo. App. ED 2000) reversed a case where a portable breath test result was admitted in a jury trial over the defendant’s objection and where the defendant had offered to stipulate that there was probable cause for the arrest.

State v. Rowe, (Mo. 2002 - #SC83880) reversed a conviction for driving while suspended, revoked or canceled. Rowe’s driver’s license in Iowa was canceled. He was arrested for driving in Missouri and charged with driving while suspended, revoked or canceled as a class D felony because of prior convictions for driving while suspended, revoked or canceled. Rowe contended that his license was not suspended, revoked or canceled under the laws of this state as required by Section 302.321 RSMo. The court concluded that the plain language of the statute was controlling and reversed the conviction. The court declined to rewrite the plain language of the statute despite the unlikelihood that the legislature intended to subject out of state drivers to suffer a lesser consequence than Missouri drivers. The defendant apparently conceded that he was guilty of driving without a license under Section 302.020 RSMo and practically invited the legislature to change the language of Section 302.321 RSMo.

Clare v. Director of Revenue, (Mo. App. ED 2002) reversed the trial court’s judgment setting aside the 10 year denial of Clare’s driving privileges. Out of a single incident, Clare was convicted of four counts of assault in the second degree involving a vehicular assault committed while he was driving while intoxicated. The Director notified Clare that his driving privileges were denied for 10 years for being convicted more than two time for offenses relating to driving while intoxicated. The traffic court commissioner sustained the Director’s decision. Clare was granted a rehearing by a circuit court judge who set aside the 10 year denial. The Eastern District reversed the circuit court, holding that the plain language of Section 302.060(9) RSMo authorized a 10 year denial.

Phillips v. Wilson, (Mo. App. WD 2002) reversed the trial court’s judgment reinstating Phillips’ driving privileges. Phillips was arrested for driving while intoxicated. Apparently after being explained the implied consent law, the officer asked Phillips to submit to a breath test. Phillips responded that he would not take the breath test. Somewhat later, the officer asked Phillips if he was still refusing to take the test and Phillips said he would refuse and the said he would not refuse. The evidence is somewhat confusing as the case was tried on the alcohol influence report and related documents without any live testimony. The trial court found that Phillips did not refuse the breath test based upon ambiguities in the record indicating that Phillips attempted to revoke his initial refusal. The Western District reversed, holding that once a driver refuses a chemical test, the driver’s request at a later to time to submit to the test has no bearing on the revocation of his driving privileges.

Crabtree v. Director of Revenue, (Mo. App. WD 2002) reversed the trial court’s judgment reinstating Crabtree’s driving privileges under the administrative suspension procedures in Section 302.505 RSMo. Crabtree was arrested for driving while intoxicated and taken to the Ray County Jail where he was asked to submit to a breath test. Crabtree asked to call an attorney. The deputy gave him a phone book. Crabtree called the only attorney he knew who unfortunately turned out to be the Ray County Prosecuting Attorney which Crabtree was aware of. The prosecutor advised Crabtree to take the test which Crabtree did, resulting in a breath test result of .221 percent. On trial de novo, the circuit court vacated the suspension and ordered the Director to reinstate Crabtree’s driving privileges on the basis that Crabtree did not receive fair and unbiased advice under the implied consent law (Section 577.041 RSMo) before deciding to take the test. The Western District reversed and reinstated the suspension of Crabtree’s driving privileges, holding that the provisions of the implied consent law allowing a driver to contact an attorney are triggered only where the driver refuses the chemical test. In a non-refusal case, contact with an attorney is not required for admission of the test results.

Kyllo v. United States, 121 S.Ct. 2038 (2001) held that thermal imaging was an unreasonable intrusion on the defendant’s Fourth Amendment privacy rights. The exterior of Kyllo’s residence was scanned with a thermal imager in an attempt to detect heat sources consistent with the growing of marihuana. The officers did not have a search warrant to use the thermal imager. Based upon the results of the thermal imaging, the officers then obtained a search warrant and discovered an indoor marihuana growing operation. The district court and the court of appeals upheld the warrant. The Supreme Court reversed in a 5-5 opinion authored by Justice Scalia. The majority opinion holds that when the government uses a device not in general public use to explore details of a home that previously would be unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant.

Atwater v. City of Lago Vista, 121 S.Ct. 15636 (2001) holds that an officer may make a custodial arrest of a person without violating the Fourth Amendment where there is probable cause to believe that the defendant has committed in the officer’s presence a minor misdemeanor violation punishable only by a fine. This was a 5-4 decision involving the custodial arrest of a driver for failure to wear a seat belt and failing to properly restrain a child passenger.

Kinzenbaw v. Director of Revenue, (Mo. 2001 – SC#83802) involves a ten year denial of Kinzenbaw’s driving privileges because of three convictions relating to driving while intoxicated pursuant to Section 302.060 RSMo. The driver had a Missouri conviction for driving with excessive blood alcohol content, a Missouri conviction for driving while intoxicated and an Iowa conviction for driving while intoxicated. Neither party presented any evidence and the trial court entered judgment for Kinzenbaw as the Director had failed to meet its burden of proof. The Supreme Court reversed and remanded. In the future, the Supreme Court set the following procedural guidelines pertaining to the burden of proof and the burden of producing evidence. Initially, the driver bears the burden of producing evidence that he is entitled to a license. Once the driver has produced evidence on this issue, the burden of producing evidence shifts to the Director to put on evidence to show that the driver is not entitled to a license. Normally, this will involve offering the certified records in the Director’s files pursuant to Section 302.312 RSMo. The burden for the Director to produce evidence does not shift the burden of persuasion which remains with the driver. After the Director has introduced its records, the driver has the burden of showing that the facts established by the certified records are not true (e.g. that he was not the person convicted or the offense was not in fact driving while intoxicated or driving with excessive blood alcohol content) or that the grounds for the Director’s action are unlawful, unconstitutional or otherwise insufficient.

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Fee Agreements: Suggestions to Avoid Disagreements

The sample fee agreements discussed at the July 10, 2002 meeting can be downloaded in PDF format from the Missouri Bar web site by clicking here.

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Appellate Practice

Three judges from the Missouri Court of Appeals, Western District, Robert Ulrich, Hal Lowenstein and Ron Holliger, and Court Clerk Terry Lord discussed appellate practice at the November 13, 2002 BCBA meeting.

Lord said that notices of appeal are screened when they are received from the circuit court to determine if they were timely filed, whether they relate to a final judgment subject to appeal, and whether they are appropriate for scheduling for pre-submission conference.

Lord said most civil cases are scheduled for settlement conferences. Approximately 20-25 percent of civil appeals are settled prior to oral argument. The court’s goal whenever possible is to set cases for settlement conference before the parties are required to spend the money on transcripts. The court generally uses senior judges for settlement conferences, but sometime has to use active judges.

Lord said that when the appellant’s brief is filed, it is reviewed in the clerk’s office where a preliminary determination is made whether the case seems appropriate for submission on briefs, normal argument, or extended argument.

Lord said that any given time, there are four panels of judges, and the cases are assigned to the panels not by specialty but rather in the order the cases are ready for submission.

Judge Ulrich said the court’s general practice now is to assign cases for the writing of opinions before oral argument. However, all the judges read all the briefs before argument. Writing assignments are made by chance before argument. The chief judge assigns judges to panels.

Judge Ulrich said the court has a monthly conference at which it handles administrative matters and can also discuss cases for possible opinion by the court en banc. Proposed panel opinions are circulated to the entire court. If a judge not on the panel disagrees with a proposed panel opinion, that judge can raise the issue to be discussed at the monthly conference. If six of the judges vote to do so, the case can be assigned to be heard by the court en banc and then is argued en banc. This is an infrequent occurrance, happening only three or four times per year at the most.

Judge Ulrich said that the chief judge handles all motions filed, except that while appeal bond motions usually go to the chief judge, they sometimes go to the presiding judge of a panel.

Judge Ulrich said Lori Kelly, the staff attorney in the clerk’s office, reviews all briefs to see if they comply with the minimum requirements. If not, the chief judge enters an order striking the brief. After a case has been assigned to a panel, a motion to strike a brief would go to the panel for ruling.

Judge Lowenstein said that everyone that has been a chief judge has also been a practicing attorney and can understand the problems lawyers have, so lawyers may be able to call up a motion in person before the chief judge and plead for procedural leniency if a deadline has been missed.

Judge Holliger said some judges have their law clerks prepare a memo before oral argument; in doing so, the clerks may or may not perform legal research beyond that contained in the briefs. Some panels are now holding pre-argument conferences. All panels usually hold a conference immediately after oral argument and take a preliminary vote on each case at that time. A panel may meet again to discuss cases after preliminary opinions are written.

Judge Ulrich said the court tries to hand down opinions within 90 days after argument, but may take longer in some cases where there may be a major impact on the law in order to allow additional time for reflection.

Judge Ulrich said that a motion for rehearing or transfer goes to the judge who wrote the opinion. This judge usually has the motion reviewed by law clerk, and after that the motion is discussed by the panel at a conference. The basic rule is that if the motion is not affirmatively granted, it is automatically denied. Any judge of the court can on his own motion order a case transferred to the Missouri Supreme Court, but the Western District rarely does this, feeling that the parties have an option to apply to the Supreme Court for transfer and the Supreme Court can take the case if it wants.

Judge Ulrich said that two judges of the court are assigned to a writ division, with one of them being designated as the presiding judge of the writ division. The writ division immediately reviews any petitions for writs when they come in, and then the presiding judge drafts an order. They try to act on writs very quickly, often the same day or the next day, but can take longer if necessary. The vast majority of writs are denied, particularly if there is another potential remedy such as an appeal. Judge Lowenstein said lawyers filing writs should give concise information in the writ because the writ division knows nothing about the case, and it is also a good practice to attach and highlight any relevant legal authorities.

Judge Ulrich said that appeals which are submitted on briefs do not get short shrift – they are handled the same as other cases.

Judge Ulrich said that if an attorney wants to provide a citation of new authority to the court which is not in a brief, the lawyer must send a letter to the court citing the case and must send a copy to opposing counsel so that opposing counsel can respond if desired.

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Understanding the Advocate's Role in Mediation

Materials presented by Sarah J. Read at the March 12, 2003 meeting of the Boone County Bar Association:

Click here for the PDF version of the slides shown at the meeting.

Following is Sarah's "Communication Guidelines" handout:

Communication Guidelines--
Settlement Conference/Common Interest In Resolution

As with any settlement conference, it is important to have a basic understanding of the positions of both parties, and the relative strengths and weaknesses of those positions; before beginning settlement discussions.  Where the parties have an ongoing business relationship and a common interest in maintaining that relationship, however, there often are options for resolving differences that do not simply reflect who was right or wrong in the legal sense.  These options instead build on the desire of both parties to improve their ongoing business relationship.  The following guidelines can help ensure that such mutually beneficial settlement options are identified and, where possible, implemented.

1.  Listen To And Demonstrate Understanding Of The Other Party's Views and Proposals.

It is important to listen carefully when the other side is talking.  Too often parties are formulating their own responses as the other side is talking and miss cues that can lead to a productive settlement.  It is equally important to summarize what you have heard before responding to statements made by another party.  This will demonstrate that you have understood them, and encourage them to listen to you.

When listening, try to understand not only the proposals being made, but also the underlying intentions and motivations. What is the real source of their concerns -- a specific claim, the structure of the overall relationship, personal differences, etc. ? What is the focus of their presentation -- past claims, or future opportunities? Are there certain parts of their presentation that reflect emotions like anger or enthusiasm? Do their comments confirm or contradict some of your own prior thoughts and assumptions about their intentions and motivations? Listening like this will also help you later formulate your own comments in a way that they will understand or accept.

Don't be afraid to be a responsive listener, one that draws the speaker out with comments and questions.  Comments like, "I understand that was difficult for your company" and questions like "how did that affect you?", "why is that important to you?", or "how would that benefit you?" help draw out details that can form a foundation for the subsequent settlement.

Because it is difficult for others to listen to and understand your point of view until they are sure you have listened to and understood theirs, you should summarize what you have heard and ask for clarification before offering a response.  This also ultimately saves time since the other parties will often reply to a response that indicates less than full agreement by re-explaining all of the points they think you must not have understood.  If you demonstrate understanding of their proposal or perspective first, they are more likely to respond directly to alternative views or proposals that you offer.

2.  Move Beyond The Past and Emphasize Common Interests.

Although past claims may have brought you to the settlement table, discussions that focus on who was right and who was wrong are less likely to result in settlement than discussions that focus on how the parties could best work together in the future.  Of course it will still be necessary to discuss the past claims since you want to settle these.  When discussing these claims, you can state your views yet avoid getting bogged down in argument, by introducing your comments with words like "we have a very different perspective on that [followed by a brief explanation]", and closing with words like, "Although our views are different, we can both benefit by resolving these issues and avoiding these types of disputes in the future; let's talk about what would help us move forward."  It may be necessary from time to time to repeat variations of this, focusing on specific concerns that have been mentioned during the course of the discussions: "I understand that was difficult for you.  As I mentioned, we don't agree on all the details, but we do agree that we want to avoid this type of issue in the future.  I understand that you need. . . "

3.  Remain Flexible and "Work Together" To Identify and Evaluate Options.

Proposals have to be made and responded to if a settlement is to be reached, but how you respond to or present a proposal determines how well you will work together to find one that is mutually beneficial.  If you reject entirely a proposal offered by the other side or present a "take it or leave it" proposal of your own, you may eliminate many settlement options before they are even identified and considered.  Generally, it is easier for parties to agree to something they help design.  Thus it is helpful to work with the other side to develop the options to be considered.  In introducing a proposal, it is helpful to identify the mutual concerns that it is intended to address, and to present it as one of several possible options: "We have a common interest in making sure the product is cost-effective and performs as expected.  One thing we might consider is. . ."

If the other side makes a proposal that is unacceptable, you can encourage them to look at it from your point of view, using questions like, "How do you think this would benefit us? "In what way do you believe this would help our future communications?" you can invite them to identify different options, without committing to anyone in advance or arguing each in sequence:  "Let's see what alternatives we might have, and how they might work for our companies."  You can also invite them to consider an alternative without committing yourself to it in advance: "What if we were to drop/modify [identify step or option and propose any alternative]?  How would that affect you?"

If you put a new proposal on the table, you should consider first offering a broad outline of the proposal and inviting the other side to add details that would make it work for them: "We think it might be possible to [state outline of proposal].  Do you think that might work?  How might we better define that?"  You can also help the other party reconsider something previously rejected as alternatives are developed: "We may be able to do that, but if we did we would need something along the lines of [previously rejected option in order to (state concern that rejected option was meant to address)].  How do we make that work?"

It is also important to watch for and address any misunderstandings that may develop.  If the discussions seem to be moving in the wrong direction, you can ask for clarification (whether of the issue, their position or of any proposal being made) or summarize what you are hearing them say.  If you have summarized their comments from time to time, you can also ask them to summarize yours when you see a misunderstanding developing: "I'm not sure we're communicating as well as I'd like to. What is your understanding of what I've proposed?"  This gives you an opportunity to clarify in turn.

If discussions were productive but begin to move in the wrong direction, you might also consider changing the focus to planning the next meeting, as discussed below.

4.  Plan for Another Meeting.

Even if you are able to agree to the basic points of a potential settlement, it is important to plan for an exchange of a draft settlement agreement, and a future meeting to finalize the settlement.

This ensures that any settlement is fully understood by both sides, and is workable.  Since any agreement raises legal issues, legal review is necessary.  In order to ensure that you are not subsequently bound by an agreement that is unclear or incomplete, you should not initial or sign documents during the meeting even if a draft agreement that appears to be acceptable is presented by the other side, or is drawn up during the meeting.

Often an initial settlement meeting does not go as smoothly as the parties had hoped, yet settlement is still a real possibility.  You can leave the door open for future settlement meetings by emphasizing that you appreciated the opportunity to meet, that you found the discussion productive even though you know both parties had hoped for more progress, and that you think the parties may well reach agreement if an additional meeting that includes lawyers, key employees, a facilitator, etc.  were scheduled.  Confirming that both parties see an opportunity for future agreement, establishing a list of issues to be included in any agreement, and setting a timeline for future meetings and actions, can preserve a momentum toward settlement.

5.  Protect Your Legal Position In The Event Settlement Is Not Reached.

When one party has raised legal claims, litigation remains a possibility until the claims are withdrawn or a settlement agreement is signed.  A waiver of past claims can, and should, be included in any settlement reached.  However, until such a settlement is signed, it is possible that these claims will be pursued in the future.  The following can help ensure that settlement discussions focus on settlement, not future litigation:

Even though settlement discussions generally are not admissible into evidence, you should avoid statements that could be construed as admissions.  You can show sympathy for the other party's view with phrases like "I'm sorry you experienced difficulties", or "I understand that you were angry", instead of phrases like "Yes that was wrong" or "We've had a lot of trouble with that."

At the outset of the meeting, you should also confirm the settlement nature of the discussion.  A statement like the following could be used: "I'm glad we were able to get together and I, like you, hope we can resolve our past differences.  Since one purpose of this meeting is settling past claims, my lawyers have asked me to confirm that nothing in our discussions will be used by either party as evidence in any subsequent proceeding should we not be able to reach agreement.”  Even if statements made during the meeting cannot be used as evidence, information gained during the meeting can be used as a basis for future discovery.  Therefore it is a good idea to carefully evaluate whether to bring any documentation to the meeting and to avoid referring to specific documents or evidence that have not previously been shared. 

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White Collar Crime

Presented May 14, 2003, by Stephen B. Smith, CPA, Williams-Keepers LLC

Click here to view the presentation slides in PDF format.

Click here for an enlarged view of Slide #13 showing the "Fraud Tree."

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Legal Ethics Counsel

Presented July 9, 2003, by Sara Rittman, Missouri Legal Ethics Counsel

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Copyright and Trademark

Presented November 12, 2003, by David Van Dyke, intellectual property attorney at Shelter Insurance Companies

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File-Retention Rule

Presented January 12, 2005 by BCBA member Sarah J. Read and by Sara Rittman, Missouri Ethics Counsel

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Click here to download the file-retention checklist in PDF format.

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Better Practice Management through Self-Management and MoLAP Program

Click here for "Better Practice Management through Self-Management" PowerPoint slides in PDF format.

Click here for "MoLAP Programs" PowerPoint slides in PDF format.

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What Every Lawyer Should Know about Bankruptcy Law Changes

Click here for program materials in PDF format.

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Introduction to Fastcase

Click here for program materials in PDF format.

Click here for the Fastcase User Guide (including Missouri addendum by Steve Scott) in PDF format.

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Another World: Civil Practice Before Associate Circuit Judges and the Differences You Should Know About

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Electronic and Digital Evidence

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Last modified: June 27, 2008